In recent years, the number and type of sexual offences facilitated by technology have increased. As our world becomes ever more reliant on technology, questions are arising about how to deal with these 'new' offences. As sexual offences defence lawyers, it is important that we remain up to date with the regulation of these crimes as well as the approach of the court towards prosecution.
Review of the law in England and Wales
The Government has recently announced a review of the law concerning the taking, making and sharing of intimate images without consent in England and Wales. In June of this year, the Government requested the Law Commission of England and Wales examine the legislation that currently exists to establish whether it is sufficient for tackling abusive and offensive communications.
The Government notes that the review will look into a wide variety of offences involving image-based abuse. Image-based abuse can include intimate image sharing without consent (sometimes referred to as 'revenge porn'); cyber-flashing (when unsolicited sexual images are sent via phone or email); and 'deepfake' pornography, which involves superimposing someone's face, without their consent, onto pornographic photos or videos. After making 'upskirting’ illegal earlier this year, it is clear that tackling these types of sexual offences is a priority for the Government.
What is the current law in England and Wales?
There is currently no single offence concerning the taking, making and sharing of intimate images without consent. The Law Commission notes that there is “a patchwork of offences that have developed over time, most of which existed before the rise of the internet and use of smartphones. Each offence has different definitions and fault requirements, and there are some behaviours that are left unaddressed.”
In terms of the existing law, so-called revenge porn is regulated by section 33 of the Criminal Justice and Courts Act 2015. This provision concerns disclosing private sexual photographs and films with intent to cause distress. It makes it an offence to disclose a private sexual photograph or film if it is made without the consent of the person in the image or film and is intended to cause that person distress.
There are defences to this offence included in the Act. Notably, the Act specifically provides that it “is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure.” Intent to distress is, therefore, crucial to the offence.
There are other offences in the existing law, including voyeurism offences under the Sexual Offences Act 2003 and the common law offence of outraging public decency.
The Law Commission has just begun the project in July of this year and it is intended to report back in summer 2021. It will be interesting to see what proposals the Commission comes up with and, indeed, what issues new technology creates between now and the final report.
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